wk05681_en20
Dieses Dokument ist Teil der Anfrage „Cooperation between the courts: taking of evidence in civil or commercial matters“
Ref. Ares(2020)6302646 - 03/11/2020 Brussels, 02 June 2020 Interinstitutional files: 2018/0203(COD) WK 5681/2020 INIT LIMITE JUSTCIV EJUSTICE COMER CODEC WORKING PAPER This is a paper intended for a specific community of recipients. Handling and further distribution are under the sole responsibility of community members. WORKING DOCUMENT From: Presidency To: Delegations Subject: Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters - Preparation of the fifth technical meeting and the second trilogue with the European Parliament Delegations will find attached the 4-column table following the fourth technical meeting with the European Parliament on the above proposal and in preparation of the fifth technical meeting as well as the second trilogue with the European Parliament. WK 5681/2020 INIT JAI.2 CHS/mg LIMITE EN
ANNEX CONSOLIDATED TEXT / COMMISSION PROPOSAL EP TEXT COUNCIL TEXT COMPROMISE Row COM(2018)0378 FINAL PROPOSALS / COMMENTS 1 THE EUROPEAN THE EUROPEAN PARLIAMENT THE EUROPEAN PARLIAMENT AND THE AND THE COUNCIL OF THE PARLIAMENT AND THE COUNCIL OF THE EUROPEAN EUROPEAN UNION, COUNCIL OF THE EUROPEAN UNION, UNION, 2 Having regard to the Treaty on Having regard to the Treaty on the Having regard to the Treaty on the the Functioning of the European Functioning of the European Union, Functioning of the European Union, and in particular Article and in particular Article 81 thereof, Union, and in particular Article 81 81 thereof, thereof, 3 Having regard to the proposal Having regard to the proposal from Having regard to the proposal from the European Commission, the European Commission, from the European Commission, 4 After transmission of the draft After transmission of the draft After transmission of the draft legislative act to the national legislative act to the national legislative act to the national parliaments, parliaments, parliaments, 5 Having regard to the opinion of Having regard to the opinion of the Having regard to the opinion of the European Economic and European Economic and Social the European Economic and 1 1 1 Social Committee , Committee , Social Committee , 6 Acting in accordance with the Acting in accordance with the Acting in accordance with the 2 ordinary legislative procedure, ordinary legislative procedure , ordinary legislative procedure, 7 Whereas: Whereas: Whereas: 1 OJ C , , p. . 2 Position of the European Parliament of 13 February 2019. 1
CONSOLIDATED TEXT / COMMISSION PROPOSAL EP TEXT COUNCIL TEXT COMPROMISE Row COM(2018)0378 FINAL PROPOSALS / COMMENTS 8 (1) In the interests of the proper (1) In the interests of the proper (1) In the interests of the proper In principle acceptable. functioning of the internal market, functioning of the internal market functioning of the internal market, it is necessary to further improve and the development of a European it is necessary to further improve and expedite cooperation between area of civil justice governed by the and expedite cooperation between courts in the taking of evidence. principle of mutual trust and courts in the taking of evidence. mutual recognition of judgments, it is necessary to further improve and expedite cooperation between courts in the Member States in relation to the taking of evidence. 9 (2) Council Regulation (EC) No (2) Council Regulation (EC) No (2) Council Regulation (EC) No Identical. 2 2 2 1206/2001 lays down rules on 1206/2001 lays down rules on 1206/2001 lays down rules on cooperation between the courts of cooperation between the courts of cooperation between the courts of the Member States in the taking the Member States in the taking of the Member States in the taking of of evidence in civil or commercial evidence in civil or commercial evidence in civil or commercial matters. matters. matters. 10 (2a) For the purposes of this (2a) For the purposes of this Maintain the general Regulation, the term ‘court’ should Regulation, the term 'court' approach. be given a broad meaning so as to should mean also other cover not only courts in the strict authorities exercising judicial sense of the word, that exercise functions or acting pursuant to a judicial functions, but also other delegation of power by a judicial bodies or authorities which are authority or acting under the competent under national law to control of a judicial authority 2 Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ L 174, 27.6.2001, p. 1). 3 Council Regulation (EU) No 2019/1111 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ L 178, 2.7.2019, p. 1). 2
CONSOLIDATED TEXT / COMMISSION PROPOSAL EP TEXT COUNCIL TEXT COMPROMISE Row COM(2018)0378 FINAL PROPOSALS / COMMENTS take evidence in accordance with which are competent to take this Regulation, such as evidence according to national enforcement authorities or notaries law for the purposes of judicial in certain Member States and in proceedings in civil and specific situations. commercial matters, in particular authorities qualified as court under other Union law instruments, such as Council Regulation (EU) No 2019/1111 , 3 Regulation (EU) No 1215/2012 of the European Parliament and 4 of the Council and Regulation (EU) No 650/2012 of the European Parliament and of the 5 Council . 11 (2b) It is essential that effective In principle acceptable. means of obtaining, preserving and presenting evidence are available, and that due regard is given to the rights of defence and the need for protection of confidential information. In this context, it is important to encourage the use of 4 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1). 5 Regulation (EU) No 650/2012 of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ L 201, 27.7.2012, p. 107). 3
CONSOLIDATED TEXT / COMMISSION PROPOSAL EP TEXT COUNCIL TEXT COMPROMISE Row COM(2018)0378 FINAL PROPOSALS / COMMENTS modern technology. 12 (3) In order to ensure speedy (3) In order to effectively ensure (3) In order to ensure speedy The EP accepted the transmission of requests and direct and speedy transmission of transmission of requests and Council suggestion but communications, all appropriate requests and communications, all communications, all appropriate requested to insert means of modern communication appropriate means of modern means of modern "reliable". technology should be used. communication technology should communication technology (3) In order to ensure speedy Therefore, as a rule, all be used, and in that regard the should be used. Therefore, as a transmission of requests and communication and exchanges of constant development of such rule, all communication and communications, all documents should be carried out technology should be taken into exchanges of documents should appropriate means of through a decentralised IT account. Therefore, as a rule, all be carried out through a secure modern communication system composed of national IT communication and exchanges of decentralised IT system technology should be used. systems. documents should be carried out composed of national IT Therefore, as a rule, all through a decentralised IT system systems. For that purpose, communication and composed of national IT systems. such a decentralised IT system exchanges of documents for data exchanges in should be carried out accordance with this through a secure and Regulation should be reliable decentralised IT established. The decentralised system composed of national nature of this system means IT systems and that it will exclusively enable interconnected by an data exchanges from one interoperable technical Member State to another, solution, for example, and without involvement of any of without prejudice to further the Union institutions in those technological evolution, on exchanges. e-CODEX. For that purpose, such a decentralised IT system for data exchanges in accordance with this Regulation should be 4
CONSOLIDATED TEXT / COMMISSION PROPOSAL EP TEXT COUNCIL TEXT COMPROMISE Row COM(2018)0378 FINAL PROPOSALS / COMMENTS established. The decentralised nature of this system means that it will exclusively enable data exchanges from one Member State to another, without involvement of any of the Union institutions in those exchanges.' Recital 4 Without prejudice to possible future evolution, the secure decentralised IT system and its constituent components should not be understood to necessarily constitute a "qualified electronic registered delivery service", as defined by Regulation (EU) No 910/2014. 13 (3a) The decentralised IT system (3a) The competent authority Council text - maintain the should be based on the e-CODEX or authorities under the law of general approach. system and should be managed by the Member State should be eu-LISA. Adequate resources responsible as controllers for should be made available to eu- the processing of personal data LISA so that such a system can that they carry out under this 5
CONSOLIDATED TEXT / COMMISSION PROPOSAL EP TEXT COUNCIL TEXT COMPROMISE Row COM(2018)0378 FINAL PROPOSALS / COMMENTS be introduced and kept operational, Regulation for the transmission as well as to provide technical of requests and other support in the event of problems in communications between the operation of the system. The Member States. The Commission should submit, as Commission, or any other soon as possible, and in any event Union institution, is not before the end of 2019, a proposal involved in any personal data for a Regulation on cross-border processing carried out within communication in judicial the decentralised IT system proceedings (e-CODEX). established by this Regulation. 14 (3b) The Commission should Maintain the general be responsible for the creation, approach. maintenance and future development of a reference implementation software which Member States may choose to apply instead of a national IT system. The reference implementation software should be designed, developed and maintained in compliance with the data protection requirements and principles laid down in Regulation (EU) 6 2018/1725 and Regulation 6 Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39). 6
CONSOLIDATED TEXT / COMMISSION PROPOSAL EP TEXT COUNCIL TEXT COMPROMISE Row COM(2018)0378 FINAL PROPOSALS / COMMENTS 7 (EU) 2016/679 , in particular the principles of data protection by design and by default. It should also implement appropriate technical measures and enable the necessary organisational measures in order to ensure a level of security and interoperability which is appropriate for the exchanges of information in the area of taking of evidence. 15 (3c) Transmission through the Maintain the general decentralised IT system could approach. be impossible due to a disruption of the system or the nature of evidence, for example when transmitting DNA or blood samples. Other means of communication could be more appropriate also in exceptional circumstances, which could include a situation where converting voluminous 7 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1). 7
CONSOLIDATED TEXT / COMMISSION PROPOSAL EP TEXT COUNCIL TEXT COMPROMISE Row COM(2018)0378 FINAL PROPOSALS / COMMENTS documentation to electronic form would impose a disproportionate administrative burden on the competent authorities or where the original document in paper format is needed to assess its authenticity. When the decentralised IT system would not be used, transmission should be carried out by the most appropriate means. This would mean, inter alia, that transmission should be performed as swiftly as possible and in a secure manner by other secure electronic means or by post. 16 (4) In order to ensure mutual (4) In order to ensure mutual (4) In order to ensure mutual Maintain the general recognition of digital evidence recognition of digital evidence such recognition of enhance cross- approach. such evidence taken in a Member evidence taken in a Member State in border electronic transmissions EP text, in principle State in accordance with its law accordance with its law should not digital evidence such evidence acceptable, subject to should not be denied recognition be denied recognition as evidence in taken in a Member State in redrafting. as evidence in other Member other Member States only because of accordance with its law the States only because of its digital its digital nature. That principle documents transmitted through EP to explain "level of nature. should be without prejudice to the decentralised IT system quality" and the "value of determining, in accordance with should not be denied legal effect evidence". national law, the level of quality and admissibility as evidence in and the value of evidence, the proceedings solely on the 8
CONSOLIDATED TEXT / COMMISSION PROPOSAL EP TEXT COUNCIL TEXT COMPROMISE Row COM(2018)0378 FINAL PROPOSALS / COMMENTS regardless of its digital or non- grounds that they are in an digital nature. electronic form recognition as evidence in other Member States only because of its digital nature. However, this principle should not otherwise affect the competence of the court seised with the proceedings to assess legal effects of such documents or their admissibility as evidence. It should also be without prejudice to requirements of national law on conversion of documents. 17 (5) Regulation (EC) No (5) Regulation (EC) No 1206/2001 (5) Regulation (EC) No Juriste-linguiste matter. 1206/2001 should be without should be without prejudice to the 1206/2001 should be without prejudice to the possibility for possibility for authorities to prejudice to the possibility for authorities to exchange exchange information under systems authorities to exchange information under systems established by other Union information under systems established by other Union instruments, such as Council established by other Union 3 instruments, such as Council Regulation (EC) No 2201/2003 or instruments, such as Council 3 3 Regulation (EC) No 2201/2003 Council Regulation (EC) No Regulation (EC) No 2201/2003 4 or Council Regulation (EC) No 4/2009 , even where that information (EU) No 2019/1111 or Council 4 48 4/2009 , even where that has evidentiary value, thus leaving Regulation (EC) No 4/2009 , 3 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ L 338, 23.12.2003, p. 1). 4 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ L 7, 10.1.2009, p. 1). 9
